Human Rights and Islamic Law: Clash or Consensus?

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Why have the countries of the Middle East, as well as Islam more broadly, most recently been the targets of major criticism regarding their human rights record? In April, the Moroccan Interior Ministry inhibited the Moroccan Association for Human Rights (AMDH) from legally listing their elected executive committees, and may also remove its standing as an association of “public utility” in name of its position in “opposing state institutions”. Yet, this is only the tip of the iceberg.

The human rights abuse accounts across the region are numerous. Independent militias in Iraq and Syria, among other countries, have destroyed numbers of civilian villages and provoked the displacement of thousands. Since then the now infamous ISIS have come to play the lead role in the never-ending flow of human rights violations in the region. The group has purposefully targeted Iraqi religious and ethnic minorities, such as Assyrian Christians, various Shia groups, and Yezidis. Those who refuse to convert to Islam are often executed. In the meantime, ISIS has reportedly tortured Yezidi men and women, and forced them into marriage. It also appears that ISIS’s gains were in part enabled by Nuri al-Maliki’s former politics, which revolved around a campaign of exclusion that inflamed sectarian violence, by perpetrating human rights violations and discrimination towards Sunnis.

These numerous incidents underline a growing dilemma in today’s shrinking global village, in which the discourse of human rights has become a matter of contention in both Western and Islamic countries. The human rights narrative has appeared as an inherently modern preoccupation, and is intrinsic to most cultural and religious systems. According to the Project on Religion and Human Rights in New York in 1994, “there are elements in virtually all religious traditions that support peace, tolerance, freedom of conscience, dignity and equality of persons, and social justice.” Nonetheless, many people have mistakenly linked the actions of religious fundamentalists, Islamic countries ruled by sharia law, and notably ISIS, to the idea that Islam is an “inherently violent” religion. This reaction can be explained by the widespread misunderstanding of Islam, which is often perceived as “alien” to Western culture and beliefs.

Let us take a closer look at the issue residing in the existence of various human rights discourses. The main obstacle hindering the 1948 Universal Declaration of Human Rights today is a practical one, which stems from its attempted quality of universality. This characteristic is exceedingly difficult to uphold due to the complexity of various cultural and religious social systems it is said to represent. Indeed, many have traced the origins of human rights as we consider them today to Western Judeo-Christian roots. This in itself narrows the possibility of a deep understanding of other legal and intellectual perspectives, which it must apply to universally. Indeed, although Islamic law is not fundamentally opposed to the notion of human rights, the maintenance of a strict application of criminal sharia law in modern Muslim states is troubling. Some of the punishments delivered by the application of such a legal system include the stoning to death for women in the case of non-marital sex, and hand amputation for theft, under certain conditions.

On the other hand, discrimination and basic human rights violation have been incorporated in regards to constitutional law in certain Muslim countries, both explicitly and implicitly. The Iranian constitution has indeed openly endorsed discrimination based on religious grounds. Muslims of denominations other than the official Twelver Shi’a sect, as well as Christians, Jews and Zoroastrians, may practice in peace while unrecognized minorities are void of political recognition. Similar practices are also present in other Muslim states such as Algeria or Syria. Moreover, the Constitution of Mauritania states: “the Muslim religion is the religion of the Mauritanian people. The republic shall guarantee to all freedom of conscience and the right to practice their religion.” What exactly do these rights mean when sharia is the official law of the people, and what are we to do with the rest of the non-Muslim population?

Although other Muslim-majority countries such as Egypt, Iran, or Pakistan signed the Universal Declaration of Human Rights in 1948, a shared sense of disenchantment has soon been felt on their part. This disenchantment spurred the drafting of the Cairo Declaration of Human Rights in Islam in 1990 by the forty-five member states of the Organization of Islamic Cooperation. This declaration, which counters the original one, failed to incorporate the notion of universality and was unsuccessful in assuring a number of fundamental rights from the initial declaration of human rights adopted by the United Nations. Thus, a significant contradiction exists between these two visions of human rights discourses, embodied by the 1948 and 1990 declarations.

These facts all seem to point towards an important reality: the failure of the universal quality of human rights. It also raises a critical question: if we accept legal rulings, such as those delivered by sharia courts, from a cultural relativist perspective (the concept that ethical and moral standards are relative to the context of a particular society’s beliefs of what is right or wrong), does it not create an excuse to justify inequity and even atrocity in the name of respecting cultural or religious beliefs?

In order to maintain the adoption of human rights at a universal level, and thus aim at progressively reducing human rights abuses in modern Muslim countries under interpretations of Islamic law, we may perhaps find a way to reconcile different perspectives; while respecting the initial declaration’s fundamental principles, especially in regards to religious freedom and women’s rights. Following German philosopher and theologian Heiner Bielefeldt’s suggestion, we may conceptualize human rights as the middle point for a “cross cultural ‘overlapping consensus’”, a concept elicited by Rawls. Doing so would allow for the complex relationship between the idea of political justice in a modern liberal society on one hand and the plurality of religious or cultural convictions held by the members of that same society, on the other, to live peacefully.

Applying this idea to a cross-cultural viewpoint would allow for the concept of human rights to be re-evaluated in the context of modern multicultural societies. Although such a system would imply certain restrictions according to liberal theory, it may be one of the only possible ways to ensure the sustainability of human rights themselves. Finding a consensus appears to be necessary for the survival of any cultural, political or legal system aiming at representing the interests of the larger public. Otherwise, we may well be heading towards risking the very existence of the concept of human rights, or perpetuate intolerance towards other forms of cultural/legal systems, which goes against its fundamental principles and undermines its universality.